ATTORNEYS

J. Clayton Athey
Director

Practice Areas

  • Corporate Litigation
  • General Litigation

J. CLAYTON ATHEY appears regularly in the Delaware Court of Chancery, the U.S. District Court for the District of Delaware, and the Delaware Superior Court representing individuals and business entities in fiduciary duty litigation, corporate mergers and acquisitions actions, commercial disputes, alternative business entity disputes, and noncompete actions and general litigation matters.

A native of Delaware, Mr. Athey graduated from the University of Delaware in 1995 and received his J.D. from the Georgetown University Law Center in 2000. At Georgetown he was an editor of the Georgetown Journal of Legal Ethics and published a note entitled The Ethics of Attorney Web Sites: Updating the Model Rules to Better Deal with Emerging Technologies, 13 Geo. J. Legal Ethics 499 (2000).

Mr. Athey serves on the Delaware Supreme Court’s Board on Professional Responsibility and is the Chair of the Board’s Unauthorized Practice of Law Subcommittee. He is active in several legal organizations including the Delaware State Bar Association and the Richard S. Rodney Inn of Court and he serves as co-President of the board of the Bellevue Community Center and Vice Chair of the board of Delaware Humanities. He is admitted to practice in Delaware, New Jersey and Pennsylvania.

REPRESENTATIVE CASES

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  • Bessenyei v. Vermillion, Inc., Del. Ch., C.A. No. 7572-VCN.  Represented corporation and its directors in successful defense of litigation challenging the elimination of a board seat and seeking to enjoin annual meeting. 2012 WL 5830214 (Del. Ch. Nov. 16, 2012), aff’d, 67 A.3d 1022 (Del. 2013).
  • Cain v. Schon, Del. Ch., C.A. No. 2024-0791-JTL. Represent founder and lead guitarist of Journey in corporate control dispute concerning the rock band’s touring entity.
  • In re: Requests for An Advisory Opinion of the Justices, Del., Consol. Nos. 35, 3035 & 38, 2025. Appointed by the Delaware Supreme Court to brief and argue the position of the General Assembly on expedited questions interpreting the Governor’s appointment powers under the Delaware Constitution. 2025 WL 778506 (Del. Mar. 7, 2025).
  • Phunware Inc., et al. v. Excelmind Group Ltd., et al., D. Del., C.A. No. 15-216-SLR.  Defended Philippines-based companies in suit alleging breaches a stock purchase agreement, ultimately obtaining dismissal. 117 F.Supp.3d 613 (D. Del. 2015).
  • Ausikaitis v. Kiani, et al., D. Del., C.A. No. 12-1175-SLR.  Defended Masimo Corp. officers and directors in derivative litigation challenging stock option grants.
  • Polychain Capital LP v. Shipyard Software, Inc., Del. Ch., C.A. No. 2022-0705-MTZ. Represented venture capital firm in an action to compel the distribution of unissued cryptocurrency.
  • Sicart v. Kleinschmidt, Del. Ch., C.A. No. 2021-0874-LWW. Defended corporate directors in a stockholder breach of fiduciary duty action.
  • Cot’n Wash,, Inc., et al. v. Henkel Corp., et al, C.A. No. 12-650-SLR.  Represented Dial Corp. and Henkel Corp. in defense of action asserting intellectual property claims.
  • London, et al. v. Tyrrell, et al., Del. Ch. C.A. No. 3321-CC.  Defended officers and directors of government technology contractor iGov in derivative action challenging executive compensation plan.
  • In re Procera Networks, Inc. S’holder Litig., Del. Ch., C.A. No. 10951-VCL.  Defended acquisition target and its board of directors in stockholder suit alleging breaches of fiduciary duty, ultimately obtaining dismissal.
  • Wang, et al. v. Fulton, et al., Del. Ch., C.A. No. 3409-VCL.  Represented common and preferred stockholders of Maritek Corporation in action alleging self-dealing conduct by controlling stockholders.
  • EHS Partners, LLC v. Eden, C.A. No. 2737-VCL.  Defended former principal of Delaware LLC in “business divorce” action against allegations of breaches of fiduciary duty and breaching the LLC’s operating agreement.
  • Cohen v. Skoop Media Associates, Inc., Del. Ch., C.A. No. 10354-VCL.  Prevailed in obtaining advancement and indemnification for legal fees and expenses in an action by a former corporate officer and director pursuant to 8 Del. C. §145.
  • Henkel Corporation v. Innovative Brands Holdings, LLC, Del. Ch., C.A. No. 3663-VCN, 2008 WL 4131566 (Del. Ch. Aug. 26, 2008).  Represented seller in action for breach of asset purchase agreement where buyer asserted existence of a material adverse event.
  • Korn v. New Castle County, Del Ch., C.A. No. 767-CC, 922 A.2d 409 (Del. 2007).  Represented taxpayers of New Castle County, Delaware in action over the County’s failure to apply tax revenues as required by Delaware law.

PROFESSIONAL AND COMMUNITY ACTIVITIES

  • MEMBER, DELAWARE SUPREME COURT BOARD ON PROFESSIONAL RESPONSIBILITY
  • CHAIR, UNAUTHORIZED PRACTICE OF LAW SUBCOMMITTEE
  • MEMBER, SECTIONS OF CORPORATION LAW, LITIGATION, DELAWARE STATE BAR ASSOCIATION
  • MEMBER, COMMITTEE ON NOMINATIONS, DELAWARE STATE BAR ASSOCIATION
  • MEMBER, SECTION OF BUSINESS LAW, AMERICAN BAR ASSOCIATION
  • BENCHER, RICHARD S. RODNEY AMERICAN INN OF COURT
  • CO-PRESIDENT, BELLEVUE COMMUNITY CENTER, WILMINGTON, DELAWARE
  • VICE CHAIR, DELAWARE HUMANITIES

BAR ADMISSIONS

  • Delaware
  • Pennsylvania
  • New Jersey
  • United States District Court for the District of Delaware
  • United States Court of Appeals for the Third Circuit
  • District of Columbia (inactive)

EDUCATION

  • University of Delaware (B.A., 1995, Honors Program)
  • Georgetown University Law Center (J.D., 2000)

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